In a rare ruling, the Appellate Division of the Third Department, an Appeals Court in the State of New York, reversed the conviction of a man who had been charged with robbing a convenience store. The Appeals Court found the prosecution’s “fundamentally flawed” presentation to the grand jury was rife with inadmissible elements. The court found the prosecution’s actions were so outrageous it invalidated all of the identification presentation of Kevin Borden, the defendant in the case.
The court specifically stated “the integrity of the grand jury proceedings were so impaired by the admission of this hearsay that reversal of the underlying conviction is required with the leave to re-present the matter to another grand jury.” The Appeals Court took this unusual action even after Mr. Borden was tried, convicted by a jury and sentenced to 25 years to life imprisonment due to the fact he was a persistent violent felony offender.
An Albany convenience store had been robbed. The convenience store clerk, named Mohamed Hafeez Habib, testified, at the time of the grand jury hearing, he was unable to identify the robber because he was wearing a mask. He specifically stated he did not “remember his face.” The Albany District Attorney’s office asked Mr. Habib “at some point did you learn what his name was?” Habib answered “somebody said his name was Kevin Borden.”
The Appeals Court ruled this was “rank hearsay ” and ” obviously inadmissible.” At the time of the grand jury presentation, the Judge in Albany County, Thomas Breslin, did not give the grand jurors curative instructions.
Habib actually told the grand jurors on four separate occasions he had been informed the man who committed the crime name was “Kevin Bordon”.
The Appeals Court in its decision stated “it is inconceivable on this record that this evidence, all of which was inadmissible, did not have a prejudicial impact on the grand jury in terms of its resolution of this issue and its decision to charge the defendant with this robbery and attempted assault.”
About the Author
Elliot S. Schlissel, Esq. is an attorney with more than 45 years of experience representing individuals being investigated for crimes and charged with felonies and misdemeanors throughout the metropolitan New York area.